Black v. State

• Decision Date: 16 January 1974
• Docket Number: No. 47591,47591
• Citation: 503 S.W.2d 554
• Parties: Robert Lee BLACK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 554

503 S.W.2d 554

Robert Lee BLACK, Appellant, v. The STATE of Texas, Appellee.

No. 47591.

Court of Criminal Appeals of Texas.

Jan. 16, 1974.

Ray Montgomery, Houston, for appellant.

Carol S. Vance, Dist. Atty., Phyllis Bell and Herbert Hancock, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty. and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

QUENTIN KEITH, Commissioner.

Appellant was indicted for the offense of robbery by assault. The jury found him guilty of the offense charged and assessed his punishment at confinement for a period of eight years.

At approximately one o'clock in the morning of February 2, 1972, Richard Butler, a plain-clothes security officer at the Warwick Hotel in Houston, was escorting Shirley Jobson, a telephone operator at the hotel, to her car parked on a side street near the hotel. While they were walking toward Miss Jobson's car on Ewing Street, another vehicle pulled up behind them, honked, but it was ignored by Butler. The car pulled up beside them and a man in the passenger's seat opened the car door slightly. From the dome light in the car, other lights on and near the street, Butler observed this man to be holding an object in his hand which Butler believed to be a pistol. Butler positively identified appellant as the man who then robbed him of his billfold containing at least one dollar.

As appellant reached for the wallet, he dropped the hand which Butler thought was holding the pistol. Butler then fired one shot downward into the car. The car then sped away with Butler firing three more shots as it did so. Butler testified that he thought that his first shot probably wounded the robber in the leg. Miss Jobson corroborated Butler in all respects, including positive identification of appellant as the robber. Both described the robber's car as being a green late model Cougar with a black vinyl top. When the robbers left the scene, Butler and Miss Jobson ran to the hotel, called the police immediately, and police arrived within fifteen minutes thereafter.

About 1:30 a.m. upon the same date, Glenn Querington, an attendant at Mercy Hospital in Houston, found appellant lying on the sidewalk outside the hospital door. He also observed a dark green Cougar automobile with a black vinyl top parked nearby and saw another black youth walking toward the car. That man told Querington that he was going to get appellant's mother. He drove off and has not been seen since.

Police Officer Robertson, also at the hospital entrance, testified that he first saw appellant while he was lying on the driveway to the hospital and observed the Cougar automobile nearby. He also testified that appellant had been shot in the left leg. While the officer was questioning the nurses and attendants at the hospital, he received a general broadcast over the police radio about a robbery which had taken place in the 1200 block of Ewing Street, the report giving a complete description of the vehicle and of the persons wanted. He observed the car and appellant matched the description given in the broadcast. Appellant was placed under arrest, given his legal warning, and the officer proceeded to search appellant for weapons. He found no weapon but did find $23 in one of appellant's pockets. One of the dollar bills bore the word 'Warwick' and the words 'Room 29' thereon. This bill was introduced in evidence.

Upon cross-examination, Officer Robertson testified that appellant told him that he was walking down Cullen Street when someone shot him. Appellant did not testify nor did he offer any evidence upon the guilt-innocence stage of the trial.

The first ground of error brought forward complains that the trial court 'erred in refusing appellant's requested charge No. 2 on the defense of alibi.' We find but one requested charge in the record, it being styled 'No. 1', but other than being filed and overruled on June 13, 1972, there is no record showing that it was reduced to writing, presented to, and considered by the trial court before reading the charge to the jury. It is apparent that appellant has not shown compliance with Art. 36.15, Vernon's Ann.C.C.P. This article is mandatory and there must be strict compliance with its terms. Seefurth v. State, 422 S.W.2d 931, 935 (Tex.Cr.App.1967). In connection with his motion for an instructed verdict, appellant called the request to the attention of the court to the failure to charge on alibi. But, as said in Ross v. State, 486 S.W.2d 339, 340 (Tex.Cr.App.1972): 'Objections to the court's charge dictated into the record do not preserve error.'

Notwithstanding the ground of error is not properly presented, we find no error on the part of the trial court. Appellant was charged with the offense of robbery by assault; the meager evidence from the police officer that appellant told him that he was shot on Cullen Street, even if taken as being positive evidence of such fact, did not raise the issue of alibi; i.e., that appellant was not on Ewing Street when he robbed the complaining witness. Windham v. State, 162 Tex.Cr.R. 580, 288 S.W.2d 73 (1956). Proof that appellant was shot on Cullen Street, if the officer's statement establishes such fact, was not inconsistent with the State's evidence that at another time he was on Ewing Street committing robbery in the presence of Mr. Butler and Miss Jobson....